Citation Nr: 0802819
Decision Date: 01/25/08 Archive Date: 02/04/08
DOCKET NO. 05-30 824 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
L. Crohe, Associate Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from
September 1974 to September 1978. These matters are before
the Board of Veterans' Appeals (Board) on appeal from a
November 2004 rating decision of the Oakland Regional Office
(RO) of the Department of Veterans Affairs (VA) that denied
service connection for bilateral hearing loss and tinnitus
and residuals of a right arm fracture and low back injury.
The veteran perfected his appeal in regards to the hearing
loss, tinnitus, and residuals of a back injury claims. On
his September 2005 Form 9, he initiated a new claim seeking
service connection for residuals of a left arm injury. A May
2006 rating decision granted service connection for a lumbar
spine disorder. As this represents a full grant of the
benefit sought, this issue is no longer on appeal. An August
2007 rating decision granted service connection for residuals
of a left arm injury. The only issues remaining before the
Board are as stated on the previous page.
Notably also, while additional medical evidence that the RO
has not reviewed was associated with the claims file in March
and July 2007, without a waiver of RO review, such evidence
that was not previously of record does not pertain to the
hearing loss and tinnitus claims. Accordingly, the appeal
may proceed without remand to the RO for initial
consideration of the additional evidence received.
FINDINGS OF FACT
1. A hearing loss disability was not manifested in service
and is not currently shown by VA standards; sensorineural
hearing loss was not manifested in the first postservice
year.
2. Tinnitus was not manifested in service, and there is no
competent evidence relating such to service.
CONCLUSIONS OF LAW
1. Service connection for bilateral hearing loss is not
warranted. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5107
(West 2002 and Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.307,
3.309, 3.385 (2007).
2. Service connection for tinnitus is not warranted. 38
U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.303 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Preliminary Matters
The VCAA, in part, describes VA's duties to notify and assist
claimants in substantiating a claim for VA benefits. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies
to the instant claims.
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper VCAA notice must inform the claimant of
any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in his or
her possession that pertains to the claim. 38 C.F.R. §
3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction decision on a claim. Pelegrini v. Principi, 18
Vet. App. 112 (2004).
The veteran has been advised of VA's duties to notify and
assist in the development of his claims. A July 2004 (prior
to the rating on appeal) letter from the RO explained what
the evidence needed to show to substantiate the claims. It
also explained that VA would make reasonable efforts to help
him obtain evidence necessary to support his claims,
including medical records, employment records or records from
other federal agencies but that it was ultimately his
responsibility to ensure that such records were received by
VA. The July 2004 letter advised the veteran to submit any
evidence in his possession that pertained to his claims. The
November 2004 rating decision, an August 2005 statement of
the case (SOC) and June 2006 supplemental SOC (SSOC) provided
the text of applicable regulations and explained what the
evidence showed and why the claims were denied. A March 2006
letter provided notice regarding disability ratings and
effective dates of awards, in which the claims were
subsequently readjudicated by the June 2006 SSOC. See
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).
Regarding VA's duty to assist, the RO has obtained the
veteran's service medical records (SMR's), along with
available VA and private medical evidence. Additionally, the
veteran was provided with a VA medical examination to obtain
a medical opinion. He has not identified any additional
evidence pertinent to these claims. VA's assistance
obligations are met. The veteran is not prejudiced by the
Board's proceeding with appellate review.
II. Factual Background
The veteran asserted that his bilateral hearing loss and
tinnitus was caused by noise exposure in service as a
demolition team member, rifle team member, and a military
policeman. The veteran's DD Form 214, SMR's, and service
personnel records reflected that his military occupational
specialty was military police and combat engineer
SMR's, included July 1973 treatment records that noted that
the left ear was bleeding. On examination the ear had been
rubbed raw in the outer canal. The veteran indicated that he
had used Q-tips to clean his ears. Nine days later it was
noted that the ear healed nicely. At this time, he had
complaints of not being able to hear out of his right ear.
On his September 1978 separation examination, he did not
report a medical history of any ear trouble or hearing loss.
A clinical examination was normal. On September 1978
separation audiological evaluation, puretone thresholds were
as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
5
5
-
0
LEFT
25
15
10
-
15
2004 treatment records from Sacramento VA Medical Center are
negative for complaints, treatment, or diagnoses of hearing
loss or tinnitus.
July 2005 correspondence from Beltone Hearing Aid Center
noted history reported by the veteran included that in April
1973, during basic training, the veteran was subjected to M-
16's, .45 caliber pistols, M-60 machine guns, and M-79
grenade launchers. He remembered ringing in his ears for a
couple of days even though he was given ear plugs. During
the fall of that year, he was required to jump out of a C-130
and a C-141 without ear protection. After that, he indicated
that it was a couple of days before his hearing returned.
This kind of acoustic trauma continued until 1978 when he
left the military service. It also indicated that the
veteran needed hearing aids.
In a statement attached to the July 2005 correspondence, the
veteran summarized his noise exposure in the military. He
indicated that in 1971, he was exposed to small arms fire at
the range. He would have ringing in his ears even with
wearing ear protection. In 1972, he was exposed to noise
during demolition training at Combat Engineer School; he was
exposed to high wind and jet noises during Airborne School;
and he was exposed to noises from jack hammers, air tools,
and helicopters. From 1974 to 1975, he was subjected to
noise from siren sounds from emergency vehicles and from
small arms fire. From 1977 to 1978, he was exposed to loud
artillery fire, small arms fire, sirens, and radios. Post
service, in 1978, he worked as a law enforcement officer,
ambulance driver, and volunteer fireman. From 1987 to 1989,
he worked in a gold mine as a rock crusher operator. From
1989 to 1995, he went back into law enforcement. From 1995
to 1999, he worked in a casino as a security officer. From
2000 to 2002, he worked as a tour bus driver. From 2004 to
the present, he worked as a school bus driver transporting up
to 84 kids on the buses.
On March 2006 VA audiological evaluation, it was noted that
the claims folder was reviewed. A review of military records
revealed that the enlistment physical (dated in March 1972),
a hearing test (dated in August 1978), and separation
examination (dated in September 1978) all revealed that
puretone thresholds were within normal limits. The veteran
reported that he experienced ringing in his ears, lasting for
a few days, following exposure to an explosion. He reported
it to a medic and was told to take an aspirin. He had
complaints of decreased hearing, and difficulty hearing with
background noise. The veteran's noise exposure while he was
in the military was summarized. Post service he served four
years as a firefighter, 10 years as an ambulance driver, 14
years as a police officer, and 7 years as a tour bus driver.
It was noted that he had mild constant high pitched bilateral
ringing in his ears. The date of onset was unknown. The
examiner noted that the claims folder did not indicate
complaints, treatment, or diagnosis of tinnitus while on
active duty. There was no evidence that the tinnitus
developed shortly after discharge or may have been related to
military noise exposure. The veteran indicated that the date
and circumstances of the onset of tinnitus was unknown. The
examiner opined that the tinnitus was less likely as not
caused by or a result of noise exposure while on active duty
in the military, and may have been exacerbated by
occupational noise exposure.
Puretone thresholds were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
20
25
35
LEFT
10
15
20
30
35
In the right ear, the average puretone threshold was 23 db
with a speech recognition score of 100 percent. In the left
ear, the average puretone threshold was 25 with a speech
recognition score of 100 percent. The examiner opined that
the veteran's current hearing loss was less likely as not
caused by or a result of noise exposure while on active duty
in the military. The current hearing loss may have been
exacerbated by the veteran's occupational noise exposure.
This was based upon the veteran's case history and the normal
discharge audiogram found in the claims folder. The shape
and configuration of the audiogram was more likely associated
with the veteran's occupational work history.
The examiner also noted that the 2005 audiogram obtained
privately was 20db to 30db worse than the results obtained by
this VA examiner. In addition, the SRT's did not correlate
with the puretone thresholds.
III. Criteria & Analysis
Service connection may be granted for disability due to
disease or injury incurred in or aggravated by active
military service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R.
§ 3.303.
To establish service connection for a disability, there must
be medical evidence of a current disability; medical or, in
certain circumstances, lay evidence of in-service incurrence
of a disease or injury; and medical evidence of a nexus
between the claimed in-service disease or injury and the
present disease or injury (disability). Hickson v. West, 13
Vet. App. 247, 248 (1999). The determination as to whether
these requirements are met is based on an analysis of all the
evidence of record and the evaluation of its credibility and
probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38
C.F.R. § 3.303(a).
A. Bilateral Hearing Loss
For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, 4000 hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, 4000 are 26 decibels or greater; or
when speech recognition scores using the Maryland CNC list
are less than 94 percent. 38 C.F.R. § 3.385.
Sensorineural hearing loss (as an organic disease of the
nervous system) is a chronic disease which may be
presumptively service connected if manifested to a
compensable degree in the first postservice year. 38 U.S.C.A.
§§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
Although acoustic trauma was not specifically noted in the
SMR's, given the veteran's military occupational specialty as
a military policeman and a combat engineer, it may be assumed
that he was exposed to noise trauma in service. However, a
hearing loss disability was not noted in service. In fact,
there was no competent evidence pertaining to the veteran's
hearing until July 2005, around 30 years postservice (well
beyond the presumptive period). See July 2005 medical
evaluation from Beltone Hearing Aid Center. Consequently,
service connection for bilateral hearing loss on the basis
that such disability became manifest in service (and
persisted) is not warranted.
The threshold matter in any claim seeking service connection
is whether the claimed disability is shown. Here, the
medical evidence does not show that the veteran has a
bilateral hearing loss disability (as defined by regulation).
Although July 2005 correspondence indicates that the veteran
needs hearing aids, there are no audiogram results that are
interpretable by VA standards. (See July 2005 medical
evaluation from Beltone Hearing Aid Center.) However, a
March 2006 VA audiometry is contemporaneous with the instant
claim/appeal, and does not show that the veteran currently
has a hearing loss disability in either ear as defined by
regulation.
In the absence of proof of a present disability there can be
no valid claim for service connection. Brammer v. Derwinski,
3 Vet. App. 223, 225 (1992). The Board has no legal
authority (and also no medical expertise) to discount the
governing regulation, 38 C.F.R. § 3.385, and find that the
veteran nonetheless has a hearing loss disability. There is
a preponderance of the evidence against the claim. Hence, it
must be denied.
While the veteran may believe that he has hearing loss due to
noise exposure in service, as a layperson he is not competent
to opine concerning medical diagnosis or etiology. Where the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence is required. See
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). And in
the matter of hearing loss disability, VA regulation governs
what the medical evidence must include.
Since the first threshold requirement necessary to
substantiate a service connection claim, competent (medical)
evidence of current disability, is not satisfied, it is
unnecessary to proceed any further with analysis of the
claim. See Hickson, 12 Vet. App. at 253. [The veteran is
advised (for information purposes, and as hearing loss
disability is generally recognized as progressive in nature)
that future audiometry showing hearing loss disability as
defined could be a basis for reopening the claim.]
B. Tinnitus
There are three threshold requirements that must be met in
order to establish service connection for a claimed
disability. First, there must be competent evidence (a
medical diagnosis) of current disability. This requirement
is met; tinnitus is diagnosed. The further two requirements
to be satisfied are: evidence of disease or injury in service
and competent evidence of a nexus between the current
disability and the disease or injury in service. The
veteran's SMR's are negative for any complaints, treatments
or diagnosis of tinnitus. Hence, direct service connection,
i.e., on the basis that tinnitus became manifested in service
and has persisted since, is not warranted.
The earliest competent (medical) evidence of tinnitus is in
2005, approximately 27 years after the veteran was separated
from service. Such a lengthy lapse of time between service
separation and the earliest documentation of current
disability is of itself a factor weighing against a finding
of service connection. See Maxson v. Gober, 230 F.3d 1330
(Fed. Cir. 2000). On March 2006 VA examination, the veteran
indicated that he remembered ringing in his ears lasting for
a couple of days following noise exposure to an explosion in
service. He then reported to the examiner that the onset of
his tinnitus was unknown. The VA examiner reviewed the
entire claims file, noted the veteran's military noise
exposure and postservice occupational exposure, and opined
that the tinnitus was less likely as not caused by or a
result of noise exposure while on active duty in the
military, and may have been exacerbated by occupational noise
exposure. The examiner reasoned that the claims folder did
not indicate that there were complaints, treatment, or a
diagnosis of tinnitus while on active duty. There also was
no evidence that the tinnitus developed shortly after
discharge or may have been related to military noise
exposure. Furthermore, there is no medical evidence to the
contrary. Because the veteran is a layperson, he is not
competent to establish by his own opinion that any current
tinnitus disorder is etiologically related to an event or
injury in service. See Espiritu, supra. He is competent to
report that he experienced ringing in his ears following
noise exposure during service; however, to establish that any
current tinnitus is related to such exposure would require
competent medical evidence. There is a preponderance of
evidence against this claim. Hence, it must be denied.
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for tinnitus is denied.
____________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs